## Facts

- Robert P. Borquez worked as an associate attorney for Ozer & Mullen, P.C. beginning in 1990 and received merit raises, including one shortly before his termination in February 1992.
- After learning that his partner had been diagnosed with AIDS, Borquez sought medical testing and attempted to have other lawyers cover a deposition and arbitration due to his distress.
- Borquez informed firm president Robert C. Ozer about his sexual orientation and his partner’s AIDS diagnosis and asked that the information be kept confidential (confidentiality was disputed).
- Ozer communicated the information to multiple people within the firm, including his wife (a supervisor), the office manager, and secretaries; the information spread further within the firm.
- Borquez learned the information had become widely known inside the firm and was upset.
- About one week after the disclosures, the firm terminated Borquez; Ozer asserted financial reasons for the termination.

## Issues

1. Whether an appellate court may affirm a jury verdict for wrongful discharge under Colorado’s lawful-activities statute when the jury was not instructed on that statutory theory.
2. Whether Colorado recognizes a common-law invasion-of-privacy claim for unreasonable publicity given to another’s private life (public disclosure of private facts).
3. Whether the jury was properly instructed on the “publicity” element of that tort when the instruction used a defamation-style “publication” standard.

## Decision

- The Colorado Supreme Court reversed the court of appeals’ affirmance of the wrongful-discharge verdict insofar as it relied on the lawful-activities statute, because that theory was not submitted to the jury by instruction.
- The Court affirmed recognition of a common-law tort for invasion of privacy based on unreasonable publicity given to one’s private life.
- The Court reversed the judgment on the invasion-of-privacy claim because the jury was instructed using an incorrect, defamation-like “publication” standard rather than the stricter “publicity” requirement.
- The Court affirmed in part, reversed in part, and remanded for a new trial consistent with its opinion.

## Legal Principles

- A jury verdict cannot be sustained on a legal theory that was not presented to the jury through proper instructions.
- Colorado recognizes invasion of privacy by unreasonable publicity given to another’s private life, consistent with the Restatement (Second) of Torts.
- For public disclosure of private facts, the plaintiff must prove “publicity,” meaning communication to the public at large or to so many persons that the matter is substantially certain to become public knowledge.
- “Publication” (communication to a single third person) may suffice for defamation but does not satisfy the “publicity” element of this privacy tort.
- Misstating the “publicity” element by lowering it to mere “publication” is instructional error requiring a new trial when it may have affected the verdict.

## Conclusion

The court held that wrongful-discharge liability could not be upheld on an uninstructed statutory theory and formally recognized a public-disclosure-of-private-facts privacy tort while requiring proof of “publicity” rather than mere communication to a third party, necessitating a new trial due to erroneous jury instructions.


Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997)